Mehar Singh, J. - (1.) The respondent, Om Parkash, became clerk of the Jagadhri Branch of the Bank of Sirmur (Nahan) on Dec. 16, 1946, and continued in that service till Feb. 26, 1955, on which date the Sirmur Bank was taken over by the appellant, the Himachal Pradesh State Co-operative Bank Limited. The employees of the Sirmur Bank were also taken over by the appellant Bank on the same terms and conditions upon which they had originally been appointed. One of the conditions of service of the respondent, according to the circular letter exhibit P. W. 3/7 of the Sirmur Bank, was that gratuity was allowable after a complete service of five years subject to certain conditions, but when the appellant Bank took over the employees of the Sirmur Bank it decided to pay gratuities to those employees with more than five years service according to the documents exhibits P-l and P-2. The respondent resigned his service with effect from March 1, 1957. He had by that time put in service of eight years and some months. The respondent claimed a number of amounts from the appellant Bank, out of which here only two are a matter of controversy, one of those amounts being the amount of gratuity claimed by him.
(2.) The claim to gratuity by the respondent is, obviously, not denied by the appellant Bank, but the difference between the parties is with regard to the manner and method of calculation of gratuity or rather the basis on which gratuity should have been calculated in the case of the respondent. The learned Judge in the trial Court adopted rather an odd method of calculating gratuity at the rate of each separate year completed by the respondent and the salary that he drew in that particular year. In this way when he aggregated the amount of gratuity, it came too much less than that claimed by the respondent. In appeal the learned Judge proceeded to calculate gratuity by multiplying by the number of the years of service the last pay drawn by the respondent. This is the ordinary, and the normal method of arriving at the, amount of gratuity due to an employee) on the basis of payment for a certain; number of years, as provided either in the terms and conditions of employment or in the terms and conditions of service, at the rate of. last pay drawn, but, of course, it is never stated that it will be the last pay that will be the basis of calculation, and yet it has never been done otherwise and nobody has ever questioned this method of calculation as the only correct method in such a case. However, this does not mean that there cannot be deviation from this normal basis for calculation of gratuity having regard to the last pay drawn by an employee for a contract of service or the terms and conditions of service of an employee may provide a different method. No such different method has been provided in the present case. In the manner of calculation adopted by the learned Judge in appeal, which it has been found to be the only correct manner which should be adopted in the present case, an amount of Rs. 100.00 has been increased in the decretal amount in favour of the respondent, and no sound argument is available in this second appeal to the appellant Bank for any interference with this part of the decree.
(3.) On the date on which the respondent took up employment of the Sirmur Bank, his working hours were six and a half hours a day. After the Sirmur Bank was taken over by the appellant Bank, the working hours were increased by two and a half hours per day. The finding of fact by the Court of first appeal is that this was done by the local Manager of the Jagadhri Bank of the former Sirmur Bank and not by the Head Office or the proper authority of the appellant Bank. The learned counsel for the appellant Bank says that there is no evidence in support of this finding. This is not correct. There is the letter exhibit D-3 of Dec. 26, 1955, by the Manager of the Sirmur Branch of the appellant Bank enquiring from the Inspector of Trade Employees, an official under the Punjab Trade Employees Act, 1940 (Punjab Act 10 of 1940), to what extent the number of working hours could be increased in the Jagadhri Branch of the appellant Bank. It may be pointed out that according to sub-section (1) of Sec. 4 of Punjab Act 10 of 1940 the maximum working hours can be fifty-four hours in one week and ten hours in any one day. This, however, only gives the maximum hours of work, but this does not give authority to anybody to increase the working hours against the contract of employment. There is also the statement of Kailash Chand P.W. 2 that the working hours of the Jagadhri Branch of the appellant Bank were increased after consulting the Trade Employees' Inspector. There is no evidence led on the side of the appellant Bank that that increase was made under the orders of the authorities in the Head Office of that Bank. Nothing has been shown that the manager had the authority to increase the working hours so as to bind the employees according to any law or contract. So the manager took extra work two and a half hours each day from the respondent for a period of about fifteen months. There was an argument in the Courts below that the respondent did not make a claim in this respect earlier, but in his statement the respondent has clearly stated that he had all the time been making a demand in this respect from the manager who had deferred meeting it on the plea that he was waiting sanction from the Head Office. The trial Court had disallowed this part of the claim of the respondent on the ground that the respondent had not for something like fifteen months made any claim in this respect and had thus acquiesced in the increase of the working hours, but the learned trial Judge ignored the statement of the respondent that he had all the time been making a claim on the manager who had been telling him that he was waiting the sanction of the Head Office. On appeal the learned Judge accepted the claim of the respondent for overtime to the tune of Rs. 646/-. In the second appeal the appellant Bank questions the decree of the first appellate Court with regard to this amount. The argument urged on the side of the appellant Bank is that it was never put in issue that there was no sanction of the Head Office for increase of the working hours, but there has been issue (5) on this, under which it was for the appellant Bank to have proved that the proper authority had increased the working hours of the respondent and that that could be done according to law or contract of employment with the respondent. This was not done. The other argument is that the respondent was contradicted by a peon of the Jagadhri Branch of the appellant Bank that the manager held no promise for payment of overtime work, but the first appellate Court has accepted the statement of the respondent in this behalf and there is no manner of reappraisal of his testimony in second appeal. So there is no substantial reason available for interference with the decree of the Court of first appeal in this respect either.;